IMPORTANT POINT
Levelling of false case comes within ambit ofcausing mental cruelty.

Ashok Kumar Gaur, J.—The present appeal is directed against the judgment and decree dated 19.02.2008 passed by the Family Court, Ajmer wherein divorce petition filed by the appellant-husband has been dismissed.

2. Briefly stated facts of the case are that the appellant got married to respondent-Kasturi Devi as per Hindu rites on 10.12.1993. The appellant filed an application under Section 13 of the Hindu Marriage Act seeking a decree of divorce against his wife-respondent on 19.01.2004. The appellant pleaded in his application that after his marriage on 10.12.1993, the respondent-wife stayed with him for two years of their marriage and she was working as Nurse in Jahawarlal Nehru Hospital, Ajmer and she used to go to her parents house very frequently. It was alleged that the respondent-wife had left the matrimonial home on 22.05.1998 and she was living separately from last 5 years on her own. It was pleaded in the application that the respondent filed a criminal case against the appellant and his three sisters for offence under Section 498-A IPC registered at P.S. Mahila Thana, Ajmer by lodging FIR No.120/1998.

3. The police had filed charge-sheet against the appellant and his three sisters and the court of Judicial Magistrate No.2, Ajmer tried the criminal case against all of them and one of the sister of the appellant, Smt. Nathi, could not bear the shock of being arrested and prosecuted fell sick and ultimately died on 11.05.2001 and her husband also died on 14.05.2001. In the criminal case, all the three sisters of the appellant were acquitted vide judgment dated 30.10.2002 but the appellant was convicted and sentenced for 2 years’ simple imprisonment and fine of Rs.1000/-. It was alleged that on conviction of the appellant, the respondent-wife distributed sweets and celebrated like an occasion. The appellant filed appeal against his conviction order dated 30.10.2002 before the Sessions Judge, Ajmer and appeal was accepted and he was acquitted of the criminal offence vide judgment dated 24.02.003. The appellant pleaded that had his criminal appeal not been accepted, he would have been terminated being an employee of Indian Railways. The appellant pleaded that he suffered mental agony and pain on account of the rude behaviour of the respondent and it was not possible to live with the respondent-wife any more. The appellant also pleaded that she has deserted him without cause and is entitled to seek a decree of divorce.

4. The respondent-wife filed reply and denied the allegations levelled in the divorce application. The respondent pleaded that it was appellant who had kept her in her father’s house and used to come to meet her and also used to cohabit with her. The respondent pleaded that since she was not able to give birth to any child, as such, the appellant-husband used to beat her. It was pleaded in reply that sister of the appellant used to give beating to her and as such, she had to lodged a report with police station. In additional plea, the respondent pleaded that she had not deserted her husband and the appellant from time to time was having physical relation with her. The respondent pleaded that on different dates, she went out with the appellant to different places in the year 2000, 2001, 2003 and stayed with him and had sexual intercourse with him. The respondent also pleaded that she had participated in the social functions organized at the residence of the appellant.

5. On the basis of the pleadings of the parties, the Family Court framed following 5 issues:-

(Matter in other language)

6. The appellant in support of his case produced 3 witnesses: AW-1 Jagdish Tanwar (appellant), AW-2 Sohan Lal and AW-3 Bhanwar Lal. The respondent-wife in support of her case also produced 4 witnesses: NAW-1 respondent-Kasturi Devi herself, NAW-2 Yashoda, NAW-3 Heera Singh and NAW-4 Shanti Devi.

7. The Family Court after considering the entire evidence decided issue no.1 in favour of the appellant and found that lodging